DECISION AND ORDER

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I. PROCEDURAL HISTORY

The Petitioner initiated these adjudicatory proceedings onFebruary 25, 1985 by filing an Order to Show Cause pursuant to theCommission's Rules of Practice and Procedure, 930 CMR 1.01 (5)(a).The Order alleged that Respondent, Thomas Newcomb, director ofsecurity for the Massachusetts Convention Center Authority (MCCA)and Boston Police officer assigned to the MCCA, had violated G.L.c. 268A. s. 4(a)11 by receiving compensation as a state employeefrom the Boston Police Department (BPD) in connection withdecisions and determinations regarding security at the HynesAuditorium.

The Respondent's answers denied the material allegations andraised certain affirmative defenses asserting the Commission's lackof jurisdiction over the MCCA and the protection of a "grandfatherclause" contained in the MCCA's enabling legislation. St. 1982, c.190, s. 38D.

An adjudicatory hearing was held on May 7 and 8, 1985 beforeCommissioner Frances Burns, a duly designated presiding officer.See G.L. c. 268B, s. 4(c). The parties filed post-hearing briefsand presented oral argument before the Commission on June 18, 1985.In rendering this Decision and Order, the Commission has consideredthe testimony, evidence and arguments of the parties.

II. FINDINGS OF FACTS

1. The Respondent, Thomas Newcomb was at all times relevantto the violations alleged in the Order to Show Cause, employed bythe MCCA as director of security at the Hynes Auditorium.

8. The Auditorium Commission voted that Mr. Newcomb beappointed director of security at the Hynes Auditorium at a sum of$8,000.00 a year. subject to the approval of the City LawDepartment.

9. The corporation counsel approved the $8,000.00compensation strictly from the viewpoint that the amount ofcompensation was not excessive.

10. During 1982, the state legislature created the MCCA, St.1982, c. 190. The statute provided for the conveyance of the HynesAuditorium and the Boston Common Garage to the MCCA, and furtherprovided that all employees holding full-time, permanent positionsat those two facilities would become employees of the MCCA "withoutimpairment of their civil service status, seniority, retirement andother rights. . . provided that nothing in this section shallbe construed to confer upon any employee any rights not held prior tothe transfer."

11. In January, 1983, Mr. Newcomb became director of securityfor the MCCA and received $8,000.00 per year for that employment.

12. Mr. Newcomb continued to be paid $25.000.00 by the BPD forhis assignment at the Hynes Auditorium.

13. In April, 1983, at the direction of the deputy directorof the MCCA, Mr. Newcomb sought an advisory opinion from theCommission concerning whether or not his continued assignment bythe BPD to MCCA while also being employed as director of securityby the MCCA violated G.L. c. 268A.

14. The Commission issued an advisory opinion. EC-COI-83-108 [2] to Mr. Newcomb regarding his dual employment on July 19,1983. The opinion stated that Mr. Newcomb's compensation by BPD forhis services during his assignment to the Hynes Auditorium, whilehe was employed by the MCCA at the same site, violated s. 4 of G.L.c. 268A.

15. Mr. Newcomb received notice of the advisory opinion inNovember, 1983, but continued to accept compensation from both theMCCA and the BPD until suspended by the MCCA.

16. Mr. Newcomb was suspended on February 1, 1984 from theMCCA payroll. Following his suspension Mr. Newcomb continued towork at the MCCA and the BPD from 7 to 3, but no longer agreed towork nights and weekends.

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III. DECISION

For the reasons stated below, the Commission concludes thatMr. Newcomb, in his capacity as a state employee. is in violationof G.L. c. 268A, s. 4(a) by receiving compensation from the BostonPolice Department in relation to particular matters in which thestate is a party and has a direct and substantial interest.

A. The MCCA as a state agency

Mr. Newcomb contended that the MCCA is an independentauthority which is not subject to the jurisdiction of G.L. c. 268A.The MCCA's enabling legislation, St. 1982, c. 190, s. 33provides

There is hereby established and placed in the executive officefor administration and finance a body politic and corporateto be known as the Massachusetts Convention Center Authority,which shall not be subject to the supervision or control ofthe executive office for administration and finance or anydepartment, commission, board, bureau or agency of thecommon-wealth except to the extent and in the manner providedin this act." (emphasis added)

Thus Mr. Newcomb argues that the enabling statute exempts the MCCAfrom supervision or control by the State Ethics Commission.

The MCCA, however, was established in 1982 as an independentstate authority and a public instrumentality. See c. 190, s. 33.For the purposes of G.L. c. 268A, "state agency" is defined as

any department of a state government including the executive,legislative or judicial, and all councils thereof andthereunder, and any division, board, bureau, commission,institution, tribunal or other instrumentality within suchdepartment and any independent state authority, district,commission, instrumentality or agency, but not an agency ofa county, city or town. G.L. c. 268A, s. 1(p). (emphasisadded)

The Commission has issued several advisory opinions to members ofthe MCCA, and has consistently considered the MCCA to be a stateagency. See EC-COI-82-150; 83-19. In its enforcement of theconflict of interest law, the Commission is not exercisingsupervision or control over the MCCA but is merely enforcing theconflict of interest law with regard to the activities of publicemployees. The language of chapter 190, s. 33 clearly establishesthe MCCA as an "independent state authority" and as such, it iswithin the aforementioned definition of state agency.

The MCCA's enabling legislation provides that all employeesat the Hynes Auditorium would become employees of the MCCA "withoutimpairment of their civil service status, seniority, retirementand other rights. . .providing, however, that nothing in thissection shall be construed to confer upon any employee any rightsnot held prior to the transfer." St. 1980. c. 190, s. 38D. Mr.Newcomb maintains that since he was receiving two salaries priorto the transfer of the Hynes Auditorium to the MCCA, s. 38D permitshim to continue the dual compensation arrangement.

In its Advisory Opinion addressed to Mr. Newcomb, however.the Commission held that Mr. Newcomb's dual compensation was inviolation of s. 20 prior to the MCCA takeover in 1983, and that thetransfer of the Hynes Auditorium to the MCCA could not create a jobright which he did not previously have. Since no right to that dualcompensation arrangement existed prior to the creation of the MCCA,in other words, and the enabling statute specifically precludesconferring "any rights not held prior to the transfer," St. 1982,c. 190. s. 38D does not bar the enforcement of s. 4 against Mr.Newcomb.

Mr. Newcomb further claims as a defense under s. 38D ofchapter 190 that he has received prior approval from the City ofBoston corporation counsel before accepting the director ofsecurity position at the MCCA. and therefore any violation of s.4 was not a knowing violation. The evidence shows, however, thatthe corporation counsel approved that arrangement strictly from theviewpoint of compensation, i.e., that the total amount ofcompensation was not excessive. and his memorandum fails toconsider the dual compensation with regard to G.L. c. 268A.Furthermore, Mr. Newcomb's status has changed since the corporationcounsel's opinion was issued because he is now considered a stateemployee as director of security, and as a state employee, hecannot use a corporation counsel's opinion, regarding municipalemployment as a defense to his receipt of compensation from someoneother than the state.[5]

C. The Section 4 Violation

Mr. Newcomb was a state employee[4] as director of securityat the MCCA and received $8,000.00 in yearly compensation from theMCCA. Mr. Newcomb also received $25,000.00 annual salary from theBPD, and the factual issue in this matter is whether the BPD salaryconstituted compensation from someone other than the commonwealthin relation to particular matters in which the state was a partyor had a direct and substantial interest.

Prior to January of 1982, Mr. Newcomb was a Boston policeofficer assigned to the Hynes Auditorium as director of security.He received $8.000.00 in annual compensation from the AuditoriumCommission in addition to his regular BPD salary. Following thetakeover of the Hynes Auditorium by the MCCA. Mr. Newcomb

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became a state employee as director of security. There is noevidence that his assignment by the BPD was changed. Rather theevidence in the record demonstrates that Mr. Newcomb's compensationfrom the BPD was for his performance of duties as director ofsecurity at the Hynes Auditorium. When Mr. Newcomb was suspendedon February 21, 1984 from the MCCA payroll, he continued to reportto the Hynes Auditorium from 7 to 3 as director of security. Mr.Newcomb's responsibilities remained the same after his suspension,except that he no longer agreed to work nights and weekends.Therefore, the logical and uncontested inference to be drawn isthat Mr. Newcomb's 7 to 3 workday at the Hynes Auditoriumconstituted his assignment by the BPD.

The Commission has held that the supplementation of a stateemployee's salary by a non-state party violated s. 4(a). In theCommission Compliance Letter, Department of Mental Health 1981State Ethics Commission 50, the Commission addressed an issue ofemployees who were receiving additional compensation from non-stateparties for services which were a part of their state duties. TheCommission stated that since the duties of the individuals involvedparticular matters in which the state was a party or had a directand substantial interest, such salary supplementation violated s.4(a).

The petitioner presented through exhibits and testimony factsto substantiate that Mr. Newcomb's state employee salary wassupplemented by the BPD. Testimony indicated that in the course ofMr. Newcomb's duties, he made decisions and determinations as tothe nature of security at the Hynes Auditorium. On two occasionshe performed internal investigations of crimes committed in theAuditorium. He acted as the Hynes Auditorium liaison with the BPDin arranging BPD details hired for MCCA special events. Therefore,as a state employee, Mr. Newcomb received compensation from the BPDin relation to these particular matters that the MCCA, a stateagency, had a direct and substantial interest.

IV. CONCLUSION AND ORDER

Mr. Newcomb was directed to request an advisory opinionby the deputy director of the MCCA in the spring of 1983. TheCommission issued its opinion on July 19, 1983 indicating that hiscontinued assignment by the BPD to the MCCA while he was directorof security at the MCCA was in violation of G.L. c. 268A, s. 4(a).Mr. Newcomb had notice of the advisory opinion in November, 1983.Mr. Newcomb ignored the advisory opinion and continued to receivehis BPD salary in relation to services performed for the state. Theargument that Mr. Newcomb sought legal advice does not mitigate hislack of compliance with the Commission's advisory opinion. Basedupon the foregoing, the Commission concludes that Thomas Newcombviolated G.L. c. 268A, s. 4(a) by receiving compensation as a stateemployee from the Boston Police Department in relation toparticular matters in which the state has a direct and substantialinterest.

1. Cease and desist from violating s. 4(a) by discontinuinghis receipt of compensation from the Boston Police Department inrelation to services he performs for the state: and

2. pay one thousand dollars ($1,000.00) to the Commission asa civil penalty for violating G.L. c. 268A, s. 4(a) within thirty(30) days of receipt of this Decision and Order.

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[1] G.L. c. 268A. s. 4(a) provides that "no state employeeshall otherwise than as provided by law for the proper dischargeof official duties, directly or indirectly receive or requestcompensation from anyone other than the commonwealth or a stateagency, in relation to any particular matter in which thecommonwealth or a state agency is a party or has a direct andsubstantial interest."

[2] This citation refers to a prior Commission conflict ofinterest opinion including the year it was issued and itsidentifying number. Copies of these and all other advisoryopinions are available (with identifying information deleted forpublic inspection at the Commission offices.

[3] There is nothing in the record to indicate that Mr.Newcomb knew about the corporation counsels memorandum, which wasactually issued to the chairman of the Auditorium Commission.before this Commission adjudication commenced.

[4] Newcomb claims that he was a special state employee atthe MCCA. He did not present any evidence in the record to prosethis claim. Assuming he did hold the status of special stateemployee, s. 4(a)(par. 7) could preclude him from receivingcompensation from the BPD because he would be receivingcompensation from a non-state party on a particular matter pendingin his state agency.